No, held the EAT, in the case of Emuemukoro v Croma Vigilant, in a judgment published on 17 November 2021.
The Claimant was employed by the Respondent as a security officer until his dismissal in 2017. He brought an unfair dismissal claim at the Employment Tribunal and a Full Merits Hearing (FMH) was listed for November 2019.
At a Preliminary Hearing (PH) in May 2019, parties were given directions to ensure readiness for the FMH. The Respondent failed to comply with any of the directions so the Claimant made an application for the Respondent’s Response to be struck out. It wasn’t practicable to deal with the application in advance of the FMH so the application was renewed by the Claimant on the first morning of the FMH.
The application was successful, with Judge Snelson striking out the Response on the grounds that the Respondent’s failure to comply with any of the orders meant ‘it would not be possible to conduct a fair trial of the case at any point during the 5 day allocation’.
The Claimant’s claim for unfair dismissal thus succeeded and the Respondents were allowed to participate in the remedy section of the hearing.
The Respondent appealed Judge Snelson’s strike out decision on the grounds that a strike out should only be issued in circumstances where a trial would never be possibleowing to a failure to follow Employment Tribunal orders rather than where it is merely not possible within the trial window.
The EAT disagreed, with Judge Choudhury ruling that where a party’s unreasonable conduct has resulted in a fair trial not being possible within the trial window, the power to strike out is triggered.
It’s a reminder, as if anyone really needs one, not to completely ignore or fail to comply with Employment Tribunal orders.
This post was written by Jack Dooley, Paralegal at didlaw.
